Kelley v. U.S. A. Oil Corp.
| Decision Date | 27 October 1978 |
| Citation | 363 So.2d 758 |
| Parties | Garland L. KELLEY v. U. S. A. OIL CORPORATION et al. 77-447. |
| Court | Alabama Supreme Court |
S. P. Keith, Jr., Birmingham, for appellant.
Stanley A. Cash, Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee, U. S. A. Oil Corp.
M. Clay Alspaugh of Hogan, Smith & Alspaugh, Birmingham, for appellee, Ray Dupree.
Garland Kelley appeals the trial court's grant of partial summary judgment as to claims for injuries he sustained from a gunshot wound while working for defendants. Since the summary judgment was not a final judgment, the appeal must be dismissed.
Appellant Kelley was employed by defendants, U. S. A. Oil Corporation and Ray Dupree, to work at a service station. While at work on October 29, 1975, Kelley was shot during a robbery of the station. On March 26, 1976, Kelley filed suit for personal injuries in the Jefferson County Circuit Court alleging negligence against U. S. A. Oil Corporation in failing to provide a reasonably safe place to work.
Kelley subsequently amended his complaint joining Ray Dupree as a defendant and adding counts under both the Employers Liability Act and the Workmen's Compensation Act. Both defendants filed motions for summary judgment which were granted as to all claims except the workmen's compensation claim against U. S. A. Oil Corporation. This claim was set for trial on April 10, 1978. On the morning of April 10 before trial, Kelley notified the trial court that he intended to appeal the grant of summary judgment. He was granted a continuance of the workmen's compensation claim pending appeal.
To support an appeal, the order appealed from must be a final judgment. Ala.Code § 12-22-2 (1975); Powell v. Republic National Life Insurance Co., 293 Ala. 101, 300 So.2d 359 (1974). The order of the trial court provides as follows:
November 28, 1977.
On November 23, 1977, motion for summary judgment on behalf of U. S. A. Oil Company, a Corporation, was submitted to the court to the plaintiff's complaint, as last amended, based upon deposition of Garland L. Kelley, answers to interrogatories of Garland L. Kelley, and affidavit of Joe Saxon, and motion for summary judgment in behalf of the defendant Ray Dupree to the plaintiff's complaint, as last amended, based upon the depositions of Garland L. Kelley and Marie Kelley, and the answers to interrogatories of Garland L. Kelley; and, the court having considered the said motions for summary judgment, the court is of the opinion that there is no genuine issue of a material fact as a matter of law; and that said motions are hereby granted as to all claims of the plaintiff against the defendants, except as to the plaintiff's claim against U. S. A. Oil Company, a Corporation, which is based upon the provisions of the workmen's compensation Act of the State of Alabama; and as to this particular claim, the motion...
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...the trial court has not directed the entry of a final judgment according to the requirements of Rule 54(b). See Kelley v. U.S.A. Oil Corp., 363 So.2d 758, 760 (Ala.1978) ("Because such an order is subject to revision, it is not a final judgment."); see also First Alabama Bank of Montgomery,......
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...from an adverse ruling, McCulloch v. Roberts, 290 Ala. 303, 276 So.2d 425 (1973), contained in a final judgment Kelley v. U.S.A. Oil Corp., 363 So.2d 758 (Ala.1978). The major contention raised is that while Home was a party to the entire declaratory judgment action, it was not technically ......
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...is generally not final unless all claims, or the rights or liabilities of all parties, have been decided.”); and Kelley v. U.S.A. Oil Corp., 363 So.2d 758, 759 (Ala.1978) (“To support an appeal, the order appealed from must be a final judgment.”). 9.Section 30–2–54 provides: “In all actions......
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